CITIZENS FOR A BETTER ENVIRON. v. Costle, 80 C 0003.
| Citation | 515 F. Supp. 264 |
| Decision Date | 15 April 1981 |
| Docket Number | No. 80 C 0003.,80 C 0003. |
| Parties | CITIZENS FOR A BETTER ENVIRONMENT, a not-for-profit corporation organized under laws of Illinois and Martin Wojcik, Plaintiffs, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency; and John McGuire, Regional Administrator, Region V, United States Environmental Protection Agency, Defendants. INLAND STEEL COMPANY; Interlake, Inc.; Jones & Laughlin Steel Corporation; National Steel Corporation; Republic Steel Corporation; United States Steel Corporation; WSC Corp.; and Youngstown Sheet and Tube Company; Chicago Association of Commerce and Industry; Illinois Manufacturing Association; Mid America Legal Foundation; Indiana Legal Foundation, Intervenors, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency; and John McGuire, Regional Administrator, United States Environmental Protection Agency, Region V, Defendants. PEOPLE OF the STATE OF ILLINOIS, ex rel. Tyrone FAHNER, Attorney General of the State of Illinois, and the Illinois Environmental Protection Agency, Intervenors, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, and John McGuire, Regional Administrator, United States Environmental Protection Agency, Region V, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Robert Goldsmith, Robert E. Yuhnke, Chicago, Ill., for Citizens for a Better Environment and Martin Wojcik, plaintiffs.
Jose R. Allen, Dept. of Justice, Land & Natural Resources Div., Washington, D. C., Gail C. Ginsberg, Asst. U. S. Atty., Chicago, Ill., Susan B. Weinstein, Elizabeth Maxwell, Environmental Protection Agency, Chicago, Ill., for EPA and other federal defendants.
James T. Harrington, Clifton A. Lake, Laurence A. McHugh, Dixie L. Laswell of Rooks, Pitts, Fullagar & Poust, Alan I. Becker, Bowles & Ward, Chicago, Ill., William M. Wycoff, Peter G. Veeder, Chester R. Babst, III of Thorp, Reed & Armstrong, Pittsburgh, Pa., for intervenor Steel Companies.
John Van Vranken, Kenneth G. Anspach, Environmental Control Division, Asst. Attys. Gen., Chicago, Ill., for State of Ill., intervenor.
the Mid-American Legal Foundation, Chicago Assn. of Commerce & Industry, Illinois Mfrs. Assn., intervenors.
Richard J. Darko, Bingham, Summers, Welsh & Spillman, Bayh, Tabbert & Capehart, Jerry P. Belknap, Bryan G. Tabler, Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., for other intervenors.
Plaintiffs, Citizens for a Better Environment and Martin Wojcik, a citizen and resident of Illinois (hereinafter collectively referred to as "CBE"), have filed this action under § 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2), against defendants Douglas Costle, the Administrator of the United States Environmental Protection Agency ("EPA") and John McGuire, EPA's Regional Administrator for Region V. CBE takes issue with the method employed by EPA to supervise compliance with the 1977 Clean Air Act Amendments with respect to the states of Illinois and Indiana. It seeks an order from this court directing defendants to promulgate federal regulations in lieu of certain portions of Illinois' and Indiana's state implementation plans ("SIP's") which allegedly fail to satisfy the requirements of the 1977 Act. 42 U.S.C. § 7401 et seq.
When EPA's original answer to CBE's complaint threatened to affect their interests adversely, certain of the region's steel companies, led by Inland Steel Company, intervened in this action both as defendants and cross-claimants.1 In addition, the State of Illinois and certain other organizations representing private business interests were granted leave to intervene.2 EPA and all of the intervenors except Illinois now have moved to dismiss CBE's complaint for lack of subject matter jurisdiction. The movants argue that the complaint does not allege the failure of EPA to perform any non-discretionary duty sufficient to permit a district court to entertain the action under § 302(a)(2). EPA also has moved to dismiss the intervenors' affirmative claims.
Resolving these motions is no easy task. As might be expected given the complexity of the Clean Air Act, each of the parties to the lawsuit has presented different theories regarding the jurisdictional question. And, initially, each of these theories has certain arguable merit. For the reasons which are more fully articulated below, however, the court concludes that it does have jurisdiction to consider CBE's claims with the exception of Count II. The ultimate relief sought by CBE may or may not be available to its full extent at this juncture. But, at the very least, this court has the power both under the Act and under more general concepts of jurisdiction, Abbott Laboratories v. Harris, 481 F.Supp. 74 (N.D.Ill.1979), to compel the Administrator to make certain preliminary determinations which the legislation itself instructed EPA to have made some time ago regarding whether Indiana's and Illinois' SIP's comply with the Act.
The statutory framework of the Clean Air Act envisions a complex cooperative venture between the federal government and the individual states to remedy the existing problem of air pollution and prevent further deterioration of the environment. Originally enacted in the 1960's, the Act has undergone extensive revision in the past decade as theories of how best to effect the goals of the legislation have changed in response to political pressures and economic realities. It is the past two revisions of the Act, first in 1970 and again in 1977, that are of primary concern here.
The 1970 Amendments to the Clean Air Act divided responsibility for plans to clean the air between the federal and state governments. The hallmark of the statute was, to its proponents, its undiluted dedication to repairing the environment; to its detractors, its unrealistic intractibility in pursuit of these goals. The Act initially required the EPA Administrator to establish national primary ambient air quality standards ("NAAQS") for a series of pollutants such as carbon monoxide and suspended particulate. § 109, 42 U.S.C. § 7409. Once EPA had established these air quality standards, the individual states were required to design and submit to the Administrator state implementation plans aimed at accomplishing these standards by the end of 1977. The states were not left to guess at what was required of them in their SIP's. Rather, detailed elements of an acceptable plan were provided in § 110(a)(2) of the Act. 42 U.S.C. § 7410(a)(2).
Within four months of the date each state submitted its SIP, the EPA Administrator was required to review the plan and determine whether it complied with the statutory commands. 42 U.S.C. § 7410(a)(1). More specifically, EPA was directed either to approve the plan if it was satisfactory, or importantly, to disapprove the SIP or any portion thereof which failed to meet the legislative mandate and within six months of the date the plan was submitted promulgate federal regulations in lieu of the non-conforming SIP. 42 U.S.C. § 7410(c)(1); City of Highland Park v. Train, 519 F.2d 681, 685 (7th Cir. 1975). See also, Mountain States Legal Foundation v. Costle, 630 F.2d 754 (10th Cir. 1980); District of Columbia v. Train, 521 F.2d 971 (D.C.Cir.1975). Thus, the salient feature of the 1970 legislative plan was that, although clean air was a joint federal-state concern, the federal government would not countenance delay on the state level in carrying out the Act.
In response to the recognition that many states had failed or would fail to meet the air quality standards established by EPA, see Currie, "Relaxation of Implementation Plans Under the 1977 Clean Air Act Amendments", 78 Mich.L.Rev. 155, 184 (1978); New England Legal Foundation v. Costle, 475 F.Supp. 425, 428 (D.Conn.1979), Congress undertook to revise the Clean Air Act in 1977. Of the extensive revisions to the Act at that time, four are of interest here. First, Congress extended the deadline for attaining NAAQS from December 31, 1977 to December 31, 1982 (and with respect to certain pollutants, until December 31, 1987). Second, each state which had failed to meet the 1977 deadline was required, in § 107 of the Act, to identify those air quality control regions failing to reach the deadline as "non-attainment" regions. Areas not meeting the relevant air quality standard for one or more pollutants were to be designated as "non-attainment" for each pollutant for which the NAAQS was violated. 42 U.S.C. § 7501(3). These designations were to be submitted and approved by EPA after notice and comment. United States Steel Corp. v. United States Environmental Protection Agency, 595 F.2d 207 (5th Cir. 1979).
The 1977 revisions further contemplated that each state with non-attainment area designations approved by the Administrator would submit revised SIP's (hereinafter sometimes referred to as "Part D SIP's") either, as is discussed more fully below, on a voluntary or mandatory basis. A required element of a Part D SIP is that it must assure attainment with the NAAQS "as soon as practicable", but in any event not later than December 31, 1982. Part D revisions were to have been submitted to EPA by January 1, 1979, and were to have been effective no later than July 1, 1979. P.L. 95-95, 95th Cong., 1st Sess., Title I, § 129(c), 91 Stat. 750 (not codified in U.S.C.).
Finally, to reinforce the commitment to achieving air quality standards by the new deadlines, certain provisions were added to the Act in 1977. For example, section 172, in conjunction with section 110(a)(2)(I) of the 1977 Act, featured the imposition, upon certain conditions (which are the subject of dispute between the parties here) of "new and modified source" restrictions in air quality regions designated as non-attainment. 42 U.S.C....
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